Pauline Tully (Cavan-Monaghan, Sinn Fein) | Oireachtas source

The practice of successive Governments from the 1970s to the 1990s was to deny disability payments to those in institutional care. Many of these people would have had profound disabilities and were relying on the State to care for them and advocate on their behalf. Instead of advocating for them the strategy of the Governments during this period, and by subsequent Governments, was to suppress advice coming to Cabinet that if those disabled people sued the State for payments their cases were likely to succeed. This affected thousands of people in up to 140 institutional care homes. It has been estimated that this affected between 4,000 and 10,000 people during the time the payment was made by the Department of Health, and affected another 2,700 people after the Department of Social and Family Affairs, as it was known, took over the payments.

As shocking as they are, these revelations should not come as too big a surprise when we consider the other scandals involving successive Governments down through the years where they have tried to deny people their rights by concealing information and settling on the steps of the courts.

I am thinking of those affected by thalidomide, sodium valproate, the CervicalCheck scandal, the mother and baby homes redress scheme, and of course, now, in respect of the nursing home fees. We need full disclosure and openness from the Government and from those who were in positions of power in respect of the Government’s heartless political strategy to withhold disability payments from those in residential care who were entitled to it and the subsequent concealment of that strategy by successive governments since. This must involve full co-operation and transparency from Government, including the acceptance of any requests from committees for Ministers to address the matter.

The current Attorney General has concluded that the State had no positive legal duty to make retrospective payment on the disabled person’s maintenance allowance. This simply begs the question as to why the cases brought against the State were settled. The Minister of State, Deputy Richmond, in response to a question I raised on this issue yesterday, quoted from the Attorney General’s report, "It is sometimes tempting to resort to generic stereotypes about the State being in some way cruel or unfair to its citizens where they are deprived of a benefit and bring legal proceedings challenging this deprivation." The Minister of State went on to quote "the ... logic of such a perspective is that the State has unlimited resources, must concede every Court case that is brought against it, and must fund every claim for compensation or redress that is demanded of it". This misses the point or, more importantly, tries to deflect from it. Of course it is the case that not all challenges against the State are well founded and that the State has a right to defend itself against a legal challenge, and of course the State should protect the taxpayer. However, the advice coming to the Cabinet was that if those disabled people sued the State for payments, their cases were likely to succeed. If this had been a case of challenges which were unfounded, when the State had the opportunity to defend its decision, it decided to settle these cases at the court steps.

As for protecting the taxpayer, it seems this is only of interest to the Government when it refers to vulnerable people. The State did not fight the church in court to get it to pay for all of the abuse it inflicted on children. It has not fought those who supplied faulty cement blocks or the builders of substandard apartments. In essence, what this and previous governments have done is to pay out to those with power and means, even if they are not primarily culpable, while denying payment to the weak, even when this obligation is utterly undeniable.

Once again I reiterate what is needed is full disclosure and openness from Government and from those who were in positions of power in respect of this heartless political strategy from the Government which withheld disability payments from those in residential care who were entitled to it and the subsequent concealment of the strategy by successive governments since. This must involve full co-operation and transparency from the Government, including the acceptance of any request from committees for Ministers to address the matter.

The Minister for Health and the Minister for Social Protection, Deputy Humphreys, will review this, will look at all of the documentation and will come back to the House within three months. I hope they will be guided by the UN Convention on the Rights of Persons with Disabilities, UNCRPD, to ensure the review is based on the rights of people with disabilities. We should not need a convention to tell us how disabled citizens are treated or should be treated. It is because of actions just like this by successive governments that we need a convention. Article 28 of the UNCRPD reads "States parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right". There are other rights in the convention that guarantee legal capacity, a right to information and justice for persons with disabilities. All of those things have been denied to the people in this case but the Ministers have an opportunity now to correct the mistakes of the past and I ask them to please do that.

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